Bent's Appeal from Probate, 38 Conn. 26

Bent's Appeal from Probate

38 Conn. 26 | Conn. | 1871

Foster, J.

The appellant, a son and one of the heirs at law of the testator, as reasons for his appeal, and to show that the decree of the court of probate dismissing his petition should be set aside, assigns the following:

1. That the eleventh clause of said will is wholly void, in that it suspends the vesting of the ownership and power of alienation of the property therein mentioned, for an absolute term of time exceeding in length the period of a life or lives in being at the death of the testator, and twenty-one years and a fraction thereafter.

2. That that portion of said will which appropriates the sum of $250 to be deposited in some good Savings Bank, and which directs the income thereof to be applied from time to time as needed to take care of the testator’s lot in the cemetery, and keep his monument in repair, is void in law as tending to create a perpetuity.

3. That that portion of the tenth clause of said will which provides for the payment of $2,000 to certain grand-children of the testator upon their arriving at the age of twenty-five years, and the further sum of $2,000 upon their arriving at the age of twenty-eight years, is void in law for the reason above specified which makes void the eleventh clause of said will.

*34These questions have been forcibly presented and ably argued. We are. not prepared to say that they are wholly free from difficulty; but the view we take of the case makes any present decision of them both premature and umiecessary.

We recently held upon an appeal from the decree of the court of probate approving this will, that a decree of the court of probate approving a will containing void bequests, was not erroneous because it was general, and did not limit its ap proval to the valid bequests. Bent’s Appeal from Probate, 35 Conn., 523. There can be no doubt however, that as a consequence of that decision, and indeed upon general principles, all the valid provisions of this will must be carried into full effect.

Now there are certain trusts created by this instrument, trusts still subsisting, the validity of «which this appellant does not seem to question, at all events we consider them effective and binding, which prevent any present distribution of this estate.

The debts, legacies, &c, of the testator being paid, the tenth clause of the will directs that the rest and remainder of the estate be placed in trust in the hands of his executors, requiring them upon certain contingencies to provide for the proper support of the children of Bartlett Bent, Jr. and Sarah his wife, grand-children of the testator, till they arrive at the age of twenty-one years. The death of the parents of these children without having provided for their support, or their inability, ii living, to furnish such support, being the contingencies on which- the executors as trustees for. these children are to act.

Nothing has been urged, nothing substantial, as we think, can be urged, against the validity of this trust. The purpose is a perfectly legitimate and proper one, and ought to be accomplished. Till this trust is fully and faithfully discharged this .property should remain where the testator has placed it. Without assuming the power to make a will for him we cannot disturb it. Besides, it should be borne in mind that the sum of fifteen hundred dollars per annum is given the widow oí the testator during her natural life, and she is still living. *35The appropriation of the $250, which the appellant insists is void as creating a perpetuity, is not to be made till the final settlement and distribution of the estate, and that, by the express terms of the will, is postponed until after the widow’s decease.

The conclusion to which we have thus arrived makes it unnecessary to pass upon the questions raised by the appellant. Even if he be right in his construction of the several clauses of this will, and whether he is or not we give no opinion, there is nothing now to distribute. It may be few, it may be many years, before these trusts will be discharged. Without the gift of prescience, which has not been bestowed upon us, we cannot decide that this property, the whole of it, may not be required for the full and faithful discharge of these trusts. Recent events admonish all who may need the admonition, that much larger estates than this, surrounded by all the safeguards that human prudence can suggest and human ability supply, may be consumed in a single night. The main design and purpose of this will might be entirely defeated, a compliance with its strictly legal provisions might be rendered absolutely impossible, by a present distribution of this estate.

We advise the Superior Court to affirm the decree of the court of probate dismissing the petition.

In this opinion the other judges concurred. ' •